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News media, new media, who’s media?
Daimhin Warner
8 December 2014

We’ve been grappling with a difficult question recently, and one that’s featured in New Zealand’s courts too. What is and isn’t news media and when should the Privacy Act apply?

This is a difficult question because its answer can have a real impact on privacy. If we decide that a person is exempt from the Privacy Act, people have no recourse to our office. While there are self regulatory industry bodies like the Online Media Standards Authority, the Press Council and the Broadcast Standards Authority, there are gaps in the regulation of online media content.

A major rationale for exempting various bodies from the Privacy Act is the availability of more appropriate forms of regulation. The Law Commission noted the problem and recommended that new forms of media regulation could be developed to address this uncertainty in the law (particularly to address issues posed by digital communications).

Traditional news media is easy to recognise - newspapers, television broadcasters, magazines - we know it when we see it, right? What about journalists who publish news in other ways - in blogs or books? Let’s take books in this discussion because this has been our recent focus.

To be considered news media in the Privacy Act, a person or agency must have news activities as their core business. News activities are defined as the gathering and disseminating of news, observations on news, and current affairs. The grey area comes with the method a journalist uses to disseminate this news. The Privacy Act requires that news is disseminated in an “article or programme”. This seems rather limited. Does it really reflect the way the news media works today?

Where a journalist is seeking to disseminate news that they believe is in the public interest, and they can establish that this is a major part of what they do, then we think a broad interpretation of the exemption is warranted. There is some support for this in the Bill of Rights Act. Section 14 of the Act enshrines the right to freedom of expression. Section 6 of the Act states that, where an enactment (such as the Privacy Act) can be given a meaning that is consistent with the freedoms contained in the Bill of Rights Act, that meaning shall be preferred to any other meaning. We must bear this in mind.

Taking that as our starting point, we’re fairly comfortable that, in the case of a book, an “article” should be broadly interpreted in a way that is consistent with an established journalist’s right to freedom of expression, provided that what they’re writing in the book is news.

After all, it seems untenable to conclude that if a journalist published each chapter of a book as a separate article in, say, a magazine or newspaper, it would be news but if those articles were compiled in a book, it would not.

Rather than look to the length of a piece of journalistic writing, we need to look to the general business of the journalist, the content of what is written and the general means that journalist uses to disseminate their work. Such an interpretation recognises that news media today use more varied means to disseminate news than they did in 1993, when the Privacy Act was passed.

We haven’t come to this view lightly. Recent High Court cases have approached the issue in completely different ways: the Chief Justice in the Kim Dotcom litigation suggested that book publication could not fall within the exemption while the High Court in Slater vs Blomfield has recently found that blogging could be a journalistic activity that attracted some elements of legal protection. This strongly suggests there is room for disagreement.

We’ll tread carefully in this area but we see a need to ensure that the Privacy Act is not interpreted in a way that unjustifiably restricts the freedom of New Zealand’s media to disseminate news, express opinion and act in the public’s interest.

Comments

I'm a bit confused between "newsworthyness" and "public interest".
If someones life would suffer as a result of exposure then that should be protected but if the country or a larger subset of the population was to benefit through transparency then that should, in my mind, be ok. It's always a decision that should not be taken lightly.
But who can do it, I don't think it should matter. Does it really matter if it's me (the guy in the comments section) , a blogger, an industry rep / PR person or the editor of a newspaper. Today we have the potential of getting the same exposure.
Should users be able to flag comments for privacy reasons ?
Should there be a simplistic way of assessing public interest.?
could this be assessed electronically, in a real time basis ( an api ? the privacy com could run)
and yes, where on earth is the rest of the public on this discussion ?

Hagers book, not that I wanted to pick a divisive example, told some inconvenient truths and we have seen at least one ratified, many in that book obviously feel "exposed" but the greater public good is through transparency. Now Hager could have gone further and exposed more information, addresses etc, It seems ironic that the author of a blog gave Hagers address details to overseas businessmen with the intent of "chop chop" and yet complains about a violation of privacy when in the case of dirty Politics ,according to Hager, he had redacted a lot of damaging personal information, mind you if khama had its way all the time the privacy commission might be out of a job.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

Do you follow any SEO experts? I never find good help in anything which can be actioned
p.s Never take guidance from people on the Warrior Forums haha

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

I like the proposal (theory?) that the word “article” in the definition of “news activity” should be interpreted widely so as to capture a book as well as a blog. However, such an argument may not hold sway in a Court. The exhortation to interpret other statutes as far as possible to be consistent with the Bill of Rights Act could be countered by the exhortation to construe any exemption or exception in human rights legislation as narrowly as possible. Further, the wider interpretation of the words “article or programme” might shift the battleground to the question of what is “news ... observations on news, or current affairs.” A book may lack the immediacy of reporting and reacting that we normally think of as characterising news.

It is worth remembering that the major difference in practice between exempting an author from the Privacy Act and not exempting them would be their subjects’ rights of access and correction under Principles 6 and 7; even if an author cannot claim the news medium exemption, the use and disclosure of personal information once obtained by the author would in all likelihood be permitted because that was the very purpose for which the author obtained the information. However, thinking of Dirty Politics as well as UK-tabloid phone-hacking, I can imagine a complaint of breaching Principle 4 (collection by means which are unlawful or unfair).

In all of this, as we presumably all recognise the benefit to society of a press which is more or less free, it seems to me important that the law be clear: the author should be able to know with confidence and in advance just what body of law would apply to the anticipated activity. Waiting and hoping for a precedent case on what must be seen as a grey area at the edge of news medium exemption, and realising that even precedents can later be reversed or distinguished upon very subtle differences between individual sets of facts, is not going to give the would-be author or publisher the confidence they want. The applicable statutes need to be robustly clear in their terms, especially around institutions and activities which we regard as important for the health of our society.

Which brings me back to wonder what has happened to the Law Commission’s recommendations for a substantial rewriting and re-enactment of the Privacy Act?

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

Thank you for your thoughtful comments, Bob. The Government is going ahead with reforming the Privacy Act. We hope to see the proposed legislation before Parliament sometime next year. The changes are based on the Law Commission's recommendations. Here's our media release from earlier this year: https://privacy.org.nz/news-and-publications/statements-media-releases/privacy-watchdog-to-get-more-teeth/

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

The Hagar case is an interesting one to consider in terms of privacy. For instance the source of Hagar's book was material stolen from Slater's computer. It seems to me that we would all have an expectation that what is on our personal computers is private to us. so using the contents of material stolen from a person's computer seems to be a serious breach of their privacy.

And in giving journalists certain exemptions from the Privacy Act, surely that also means journalists ought not to be able to profit from breaching someone's privacy by using stolen material from their computer?

Hagar himself is fighting in the Courts to have material returned to him that the Police took from his home, (under warrant) on the basis that the material is protected because he is a journalist.

It seems ironic that as a journalist, Hagar can profit from stolen e-mails, but when the Police legally seize HIS information he challenges it in Court.

I think the exemptions to the Privacy Act that journalists enjoy should not apply if they have used have information they known was criminally obtained.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.